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Chandulal and Co. Vs. Nihalchand Pannaji - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai High Court
Decided On
Case NumberA.F.O.D. No. 215 of 1970
Judge
Reported inAIR1972Bom299; (1972)74BOMLR142; ILR1972Bom811; 1972MhLJ329
ActsCode of Civil Procedure (CPC), 1908 - Order 21, Rule 1
AppellantChandulal and Co.
RespondentNihalchand Pannaji
Appellant AdvocateA.G. Sabnis, Adv.
Respondent AdvocateH.V. Chande, Adv.
Excerpt:
civil procedure code (act v of 1908), order xxi rule 1 -- impossible option of payment into court of decretal amount on holidays or in vacation whether available to judgment-debtor.;the option that a judgment-debtor is given in the scheme of order xxi, rule 1 of the civil procedure code, 1908 to pay money payable under a decree into the court may, by reason of a scheme of a consent decree, be rendered impossible and accordingly unavailable. in such circumstances, the judgment-debtor will be under an obligation to discharge his liabilities under the decree by resorting to the other possible options mentioned in order xxi, rule 1 of the code.;obligations created by decrees are meant to be carried out and a debtor is not entitled to select an option which makes it impossible to carry out the..........to the judgment - debtor to select the impossible option of discharging his liability under the decree by payment into court on entire closed days and / or in vacation. obligations created by decrees are meant for being carried out and it is difficult to appreciate why a debtor should be entitled to select an option which makes it impossible to carry out the provisions in the decree. now, it is true that the city civil court was in december holidays on december 23. it is at the same time true that the plaintiff who carried on business and had dealings with the defendants was available in bombay for receiving payment on december 23, the date fixed for payment of instalment in december. it is difficult to appreciate why in those circumstances towards discharging their obligation for.....
Judgment:

1. This is judgment - debtors' appeal against the dismissal of their chamber summons for setting aside the attachment levied under warrant of attachment dated 14-1-1970. The relevant facts are as follows :-

2.On the summons for judgment taken out by the plaintiff, a decree on admission for Rs. 4,529.74 and interest and costs was made against the judgment - debtors. The decree was made payable by monthly instalments of Rupees 200/- with a direction that the first of such instalments be paid on September 23, 1968 and the subsequent instalments on or before the 23rd of each succeeding month. The decree provided that in default of payment of any two instalments the whole of the decretal balance then due should become payable and accordingly the plaintiff should be at liberty to apply for recovery of the outstanding balance by execution of the decree.

3.Admittedly, the debtors made first default in payment of Rs. 200/- payable on September 23, 1969. The Second default was alleged to have taken place in respect of instalment of Rs.200/- payable on December 23, 1969. The City Civil Court which had passed the decree was closed for Christmas holidays between December 23, 1969 and January 4, 1970, and the defendants made deposit of Rs. 200/- in Court on January 5, 1970. The plaintiff's case was that by non-payment of Rs. 200/- on December 23, 1969 and January 4, 1970, and the defendants made deposit of Rs.200/- in Court on January 5, 1970. The plaintiff's case was that by non-payment of Rs. 200/- on December, 23, 1969. The plaintiff accordingly, after instituting an application for execution, got issued the warrant of attachment dated January 14, 1970. Attachment was levied by service of the warrant on January 19, 1970. The defendants thereupon took out the above chamber summons for raising of the attachment. The contention of the defendants in the trial Court was that under Order 21, Rule 1 of the Code of Civil Procedure, all moneys payable under a decree could be at the option of the debtor paid in three different manners as mentioned in sub-rule (1) of Order 21. The money could be paid into Court whose duty it is to execute the decree or by payment to the decree - holder out of Court or otherwise in the manner as the Court which made the decree directs. The submission on behalf of the debtors was that all the previous instalments were paid by depositing the money into Court. Rs. 200/- which was payable on December 23 was at the option of the debtors payable into the City Civil Court. That Court was enjoying December holidays on December 23. The payment made on the reopening day on January 5 was valid payment for satisfaction of the instalment that was payable on December 23. This was so because of the scheme of Order 21, Rule 1. This submission was in consonance with the findings made by the High Court at Nagpur in the case of Premchand Bhikabhai v. Ramdeo Sukdeo, AIR 1949 Nag 141, and the decision of the Madhya Pradesh High Court in the case of Rakhadoo v. Narayan, : AIR1959MP352 .

4.Apart from the observations in the above two authorities, it has appeared to me that the option that the judgment - debtor is given in the scheme of Order 21, Rule 1 to pay money in Court may by reason of a scheme of a consent decree be rendered impossible and accordingly unavailable. Thus, when a decree directs payment to be made on a particular day when the Courts may be entirely closed due to holidays and / or vacation, the option for making payment into Court would be entirely impossible and unavailable. There is no reason why in those circumstances the judgment - debtor must be entitled to the benefit of such impossible option. On the contrary, in obedience to the provisions of the decree, he should be under an obligation to discharge his liabilities under the decree by resorting to the other possible option as contained in the scheme of Order 21, Rule 1. There is no reason why when payment could be directly made to the decree-holder as mentioned in clause (h) of Rule 1 of Order 21, there should be liberty to the judgment - debtor to select the impossible option of discharging his liability under the decree by payment into Court on entire closed days and / or in vacation. Obligations created by decrees are meant for being carried out and it is difficult to appreciate why a debtor should be entitled to select an option which makes it impossible to carry out the provisions in the decree. Now, it is true that the City Civil Court was in December holidays on December 23. It is at the same time true that the plaintiff who carried on business and had dealings with the defendants was available in Bombay for receiving payment on December 23, the date fixed for payment of instalment in December. It is difficult to appreciate why in those circumstances towards discharging their obligation for making payment on December 23, the judgment - debtors were not bound to go and make payment to the plaintiff himself. It is further necessary to notice that the office of the City Civil Court was open for receiving urgent Civil work and applications even during December holidays. It was, therefore, open to the judgment - debtors to go to the vacation Judge of that Court and inform him that they would be guilty of default in discharging their obligation to make payment on 23 rd December if deposit was not received in the Court Office. The Judge would have considered that application and made an appropriate order. In connection with the observations of the High Court at Nagpur in the above cited case, it first requires to be noticed that the Court mentioned that different divergent opinions had been expressed on the question involved by different Courts. In Chmina v. Chunnilal, , and the decision of the Madhya Pradesh High Court in the case of Rakhadoo v. Narayan, : AIR1959MP352 .

5.Apart from the observations in the above two authorities, it has appeared to me that the option that the judgment - debtor is given in the scheme of Order 21, Rule 1 to pay money in Court may be reason of a scheme of a consent decree be rendered impossible and accordingly unavailable. Thus, when a decree directs payment to be made on a particular day when the Courts may be entirely closed due to holidays and / or vacation, the option for making payment into Court would be entirely impossible and unavailable. There is no reason why in those circumstances the Judgment - Debtor must be entitled to the benefit of such impossible option. On the contrary, in obedience to the provisions of the decree, he should be under an obligation to discharge his liabilities under the decree by resorting to the other possible option as contained in the scheme of Order 21, Rule 1. There is no reason why when payment could be directly made to the decree-holder as mentioned in clause (h) of Rule 1 of Order 21, there should be liberty to the judgment - debtor to select the impossible option of discharging his liability under the decree by payment into Court on entire closed days and / or in vacation. Obligations created by decrees are meant for being carried out and it is difficult to appreciate why a debtor should be entitled to select an option which makes it impossible to carry out the provisions in the decree. Now, it is true that the City Civil Court was in December holidays on December 23. It is at the same time true that the plaintiff who carried on business and had dealings with the defendants was available in Bombay for receiving payment on December 23, the date fixed for payment of instalment in December. It is difficult to appreciate why in those circumstances towards discharging their obligation for making payment on December 23, the judgment- debtors were not bound to goo and make payment to the plaintiff himself. It is further necessary to notice that the office of the City Civil Court was open for receiving urgent Civil work and applications even during December holidays. It was, therefore, open to the judgment -debtors to go to the vacation Judge of that Court and inform him that they would be guilty of default in discharging their obligation to make payment on 23rd December if deposit was not received in the Court Office. The Judge would have considered that application and made an appropriate order. In connection with the observations of the High Court at Nagpur in the above cited case, it first requires to be noticed that the Court mentioned that different divergent opinions had been expressed on the question involved by different Courts. In Chimna v. Chunnilal, , it was held that where the due date for payment under a decree fell during the vacation, but the Court was kept open for urgent work, the payment made on the date the Court reopened was not within the time fixed by the decree. In the case of Indal v. Ram Nidh AIR 1946 Oudh 156, failure of payment of the amount due under the decree on the specified date on the ground that the High Court was then in vacation and payment made on the reopening date was held to have been made not within the time prescribed by the decree. Now, it appears to me that the findings made in the above two authorities are in consonance with the scheme of Order 21, Rule I and I would prefer these authorities to the authorities on which reliance has been placed on behalf of the judgment - debtors.

6.Under the circumstances, the trial Court was right in dismissing the chamber summons taken out by the defendants. The appeal is dismissed with costs. Stay to stand vacated. The amount deposited in the trial Court is directed to be paid over to the decree-holder.

7. Appeal dismissed.


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